Structure of the Essay. The current Iranian sale of goods law is based on Civil Code.
However, historically, Iranian civil law is closely tied to that of Shi'ah law.[2] The case has become more important when Iranian Constitution has declared the Shi'ah law predominant.
For this purpose, its principle 4 provides:

"All civil, penal, financial, economic, administrative, cultural, military,
political, and other laws and regulations must be based on Islamic criteria.
This principle shall absolutely and generally govern all the principles of the
constitution as well as all other laws and regulations, and this shall be at the
discretion of the jurists (fuqaha), members of the Guardian Council".[3]

The Constitution has also extended the significance of Shi'ah law to the level of settling
disputes by the courts when setting up:

"The judge is bound to endeavour to judge each case on the basis of
the codified law. In the case of absence of any such law, he has to
deliver his judgement on the basis of authoritative Islamic sources
and authentic fatawa. ..." (italic added).[4]

Accordingly, Shi'ah law is of significance in the Iranian legal system and it will thus cover a
large part of the Iranian and Islamic section of this essay. However, no one can
comprehensively present Shi'ah law in its real picture without looking at the main sources of
the law and the method of exploiting the rules relating to the issue in question. Nevertheless,
there is obviously no room in this study for a complete exposition of the relevant sources
except in a summary form. A general introduction to the sources on which the law relating to
the issue in question is based, the method of exploiting the law governing the issue and the
methodology employed to perform this study are allocated to the First Chapter.

The main body of this work, i.e., dealing with the rules relating to the buyer's right to specific
performance under the four systems, is covered by the Second. In the case of English law, the
study will focus on the law regulating the buyer's remedies in light of the Sale of Goods Act
1979 as interpreted and applied in relevant judicial precedents and general principles of
contract law, as a primary source, and the commentaries of academic writers in the field of the
sale of goods law, as a secondary tool. In performing the English part of the study much
emphasis is placed on the well-established law applicable to the issues in question without
getting into much detail, though reference is made to different approaches taken by English
commentators in respect of a particular issue where there is no settled law.

Similarly, in respect of the Convention, primary emphasis is placed on the rules prescribed by
the Convention with respect to the issues under consideration by way of interpretation of the
text of the Convention. However, the history of legislation of any particular provision is not
disregarded. Great efforts are made to interpret the text of the Convention in light of its
legislative history to read the intention of the Convention drafters.

A somewhat more complex method is used in the Iranian and Islamic part of the work. As far
as Iranian law is concerned, focus would be on the Iranian Civil Code. If no required
provision exists, the method suggested by principle 167 of the Iranian Constitution is
employed. Under this principle, "The judge is bound to endeavour to judge each case on the
basis of the codified law. In the case of absence of any such law, he has to deliver his
judgement on the basis of authoritative Islamic sources and authentic fatawa. ..." (italic
added).[5]

To identify what is law under Shi'ah jurisprudence, great efforts are made. This is because
that most jurisprudential arguments have been made with respect to very traditional as well as
hypothetical cases or questions rather than concrete ones. Likewise, the jurists have not
gathered and classified the law governing the remedies for breach of contract, but they are
scattered rules discussed in different places. For this purpose, initially an attempt is made to
answer the relevant questions in accordance with the existing law, that is, Shi'ah jurists'
judgements. In the absence of express statements of law, it is attempted to answer the question
by interpreting the judgements of the jurists in similar situations and analysing the original
authorities upon which the jurists have based their judgements in those cases. When the legal
vacuums could not be filled by the foregoing methods, the author has tried to suggest the
appropriate law by way of interpretation of the well-accepted general principles.

A necessary part of a study of such a nature is first to compare the various solutions adopted
in developed legal systems on the problems in question in a short form to highlight the gaps in
undeveloped systems. For this purpose, Iranian-Shi'ah law is extensively compared with the
two developed systems here under examination in order to assess how they work and finally to
show how much similarities and dissimilarities exist between Iranian-Shi'ah law and the two
other systems. The Third Chapter is allotted to this purpose.

Although such a study may be carried out by way of a mixed study raising a problem and
analysing any particular solution prescribed in a relevant legal system, it seems that the best
way for the present study is that the author first shows the attitude of the developed systems,
case by case, and then examines the issue under the undeveloped system and at the end uses
these materials as a basis for a comparative assessment. This would help the writer first to
show the vacuums in an undeveloped system and then to consider how the existing gaps can
be filled by interpretation of the existing law and giving new suggestions.

"The judge is bound to endeavour to judge each case on the basis of
the codified law. In the case of absence of any such law, he has to
deliver his judgment on the basis of authoritative Islamic sources and
authentic fatawa. ..." (italic added).[7]

1.2 Historical Background

To understand Shi'ah law as a separate legal system, one has to bear in mind the history of
emergence of Shi'ah school of thought as a separate Islamic school. Emergence of different
Islamic schools of thought has a long and complex history. It originates in the question of
succession to the Prophet of Islam, when he passed away in the Islamic Hijrah (lunar) year
11/AD 632.[8] Before his passing away, all Muslims were unanimous that the primary source of
law was Quran and in the case of doubt the case must have been referred to the Prophet's
view. However, after his death differences emerged between his followers. The majority took
the view that the Prophet did not specifically designate his successor but left the issue of
succession to Muslims themselves to elect their own religious leader. However, the minority
Muslims argued that the Prophet in several occasions did explicitly and implicitly specify his
successor who was Ali ibn Abitalib (the Fourth Caliph in view of the Majority) and his
decisions should have been observed by the Muslim community as the Prophet' decisions.
They also argued that the question of Imamah (divine leadership) of the Muslim community
was not an issue to be left to Muslims themselves. God had to specify a particular person to
lead and administer the Muslim community under the divine law. On these textual and logical
bases, they believed that the leadership of Muslim community devolved, upon Ali's
martyrdom in 40/661, successively on Ali's two sons Hassan and Hussain. Thereafter it
continued on the hereditary line through Ali's second son, Hussain the Third Imam, in the
Prophetic House until the Twelfth Imam, al- Mahdi became the last who is still alive and
remained in "occultation" (ghaybah) or hiding and will appear one day as the saviour.[9]

Upon this difference, two schools of thought emerged between Muslims community. Upon the
first which was followed by the majority, it was held that in any case where there was a
statement from the Quran or the Prophet it must be followed, otherwise the case must have
been referred to the secondary sources. From then the majority of Muslims have gradually
tried to develop some reliable sources upon which the Islamic faith should have been based
and subsequently their school of thought was formed. This particular form of thought is
commonly called the "Sunni school of thought". However, the minority of Muslims disagreed
with that view and gave to the words, actions and taqrir (approval) of Shi'ahImams (they are
usually called the "Household of the Prophet") the same religious validity all Muslims agreed
to give to the words, actions and taqrir of the Prophet.[10] On this basis, a separate school of
thought was formed with its own methodology. This is commonly called the "Shi'ah school of
thought".[11]

Following the emergence of difference between Sunni and Shi'ah scholars in respect of the
sources upon which any particular religious view must have been based it was inevitable that
there had to emerge two separate schools of Sunni and Shi'ah feqh. Sunni scholars went their
own way and gradually established their own methodology of inferring the law of Shari'ah.
However, the Shi'ah community did not feel such necessity at the period of Imamah. In any
new situation the case was referred to the living Imam and any answer given by him was
considered as the law of Shari'ah.[12]

Although at the period of Imamah of Shi'ah Imams some essential features of the theory of
Imamah developed and a notable legal heritage was left, they were mostly oral and not
systematic. For this reason, after the Occultation of the Twelfth Imam (starting from 265/879,
particularly, after the permanent Occultation commenced from 329/941) Shi'ah scholars felt
the need to systematise their own feqh.[13] For this purpose, they began to establish their own
methodology which is known as the e'lm al usoul (Discipline of Principles or Science of
Roots).[14] Under e'lm al usoul, they have gradually developed a particular methodology by
which a jurist would be able to infer the law of Shari'ah. Under this methodology, any jurist
seeking the law of Shari'ah must base his judgement on at least one source whose
authoritativity is established in e'lm al usoul.[15]

Bearing the aforesaid point in mind, to perform a study of the nature of the present one may
seem somewhat hard at first glance unless a general picture of the sources upon which the
rules of this legal system should be based is presented. Identification of these sources and
close understanding of their position in inferring the law of Shari'ah seems very significant. It
enables a researcher not to fall into mere imitation and adoption of a particular legal view
without a satisfactory justification. This may not be the case with respect to the legal systems
which possess a well-classified as well as a developed codified legal system. However, the
case is significant in respect of Shi'ah law. Talking of this legal system is not so easy as it
may appear. When speaking of this system one must make a distinction between the principles
which constitute the basic foundations of it and what has gradually developed over centuries
from the emergence of Islam by Shi'ah scholars as Shi'ah jurisprudence. This is an important
as well as a difficult task for a person who is interested in studying Shi'ah law. There are
certain well-accepted sources which constitute the basic framework for understanding this
legal system. Whatever is said on the part of a Shi'ah jurist must be justified by at least one of
those well-accepted sources, otherwise it has no Islamic value. Accordingly, a legal view will
have an authoritative value for Shi'ah community if it accords with those original sources.

However, dealing in detail with all legal sources upon which Shi'ah law is built is not feasible
within the study of this type. What is said below is only a general examination of the sources
upon which any legal rule should be founded in order to show how far this system of law
could answer modern questions within its methodology.

Conventionally, it is said that Shi'ah law comprises the aggregate of divinely-ordained rules
which are to be inferred by the qualified jurists.[16] The role of jurist in Shi'ah law is not to
make the law. What he judges is a simple announcement of the law of Shari'ah he discovers
from the recognised sources.[17] In any particular case he has to endeavour to base his
judgement on one of the sources which are prescribed below. The process of inference of
detailed rules from the recognised sources is called "ijtehad" (literally, "endeavour" or "self-exertion").[18] On this view, it is held that the primary source is the Muslim Holy Book
"Quran". The second source, in practice the most important one, is the Sunnah. Two further
sources are also recognised by Shi'ah jurists, that is, ijma' and a'ql. No further source is
formally recognised. However, as will be shown below, certain supplementary sources have
been, albeit in varying degrees, used by the jurists in justifying their judgements.

2.1 Formal Sources

Although the four aforementioned sources are formally recognised in Shi'ah law as the valid
source for inferring the law of Shari'ah, they are not employed at the same degree. There is a
strict hierarchical order between them and are divided into two categories: primary and
secondary.

2.1.1 Primary Sources

Quran and Sunnah are held to constitute the primary sources for inferring the law of Shari'ah.
Since the rules prescribed therein are written down, they are commonly described as nass
(sing.; nusous, pl.), which can be translated as Script or Text, forming the 'written'
authority.[19]

2.1.1.1 Quran

The Quran is the principal source of every form of Islamic thought. It is the Quran which
gives religious validity and authenticity to every other religious source in Islam.[20] This source
is often called "ketab" (the book). It consists of over 6,000 ayah (sing.; ayat, pl.; literally,
verses) [21] divided into 114 sourah (literally, chapters). The individual verses were pronounced
over twenty-three years of Muhammad's Prophethood as wahy (revelation) of God's
commandments. Among more than 6,000 verses of the Quran only about 500 of its individual
verses are said to be concerned with the legal issues.[22] However, they contain certain general
principles from which a number of detailed rules can be derived. It is to be mentioned that
since a mass of rewayat are available in respect of the Quranic rules, any jurist is required to
take into account those part of rewayat which elaborated the contents of these Quranic verses
when inferring the relevant religious precepts.[23]

2.1.1.2 Sunnah

The other source upon which a legal view can be based is Sunnah. In the terminology of
Islamic jurists, the term "Sunnah" (sometimes it is called "sirah") means [24] words (qoul),
action (fe'al) and taqrir (implicitly approval) [25] transmitted from the Prophet which can be
translated into "tradition". This source was spelt out by means which is called "hadith", pl.
"ahadith", "rewayah", pl. "rewayat", or "khabar", pl. "akhbar".[26]

To explain, at the time when the Prophet was living, his followers referred queries and
disputes to him and he answered their questions, adjudicated their disputes and pronounced
rulings. Sometimes he made an action with the intention of teaching his followers the law of
Shari'ah or a particular action or behaviour was made and the Prophet did not object while he
was realising that action or behaviour. His words, deeds and approvals were remembered by
his followers and subsequently recorded in writing as the Prophet's Sunnah.[27]

To that extent Shi'ah and Sunni schools are common, although they depart from each other in
the way of narrating the Prophet's Sunnah. However, these two schools depart from each
other in that Sunni school restricts Sunnah to sayings, deeds and approvals of the Prophet,
while Shi'ah school extends it to include the sayings, deeds and approvals of the Twelve
Shi'ahImams. In this way, the Shi'ah school inserted into the category of Sunnah a mass of
words, deeds and approvals transmitted from the Twelve Imams of Shi'ah after the death of
the Prophet as a primary source of law.[28]

Accordingly, a Shi'ah jurist when relying on Sunnah has to look at those rewayat narrated
from the Prophet and Twelve Shi'ahImams and establish whether or not the particular rule
was pronounced by the Prophet or Imams.[29] After he establishes the attribution of the
statement to the Prophet or one of Imams, he should try to understand his real behaviour. By
understanding that he tries to derive the relevant religious rules.[30]

2.1.2 Secondary Sources

There are some other sources which are formally recognised by Shi'ah jurists as the source of
the law of Shari'ah. However, the same validity is not given to these sources as to the two
previous sources. Thus, in the case of conflict between a source of the second type with that of
first type no value is given to the secondary source. These sources are ijma' and a'ql.

2.1.2.1 Ijma'

The term ijma' literally means 'intention to do something' [31] and technically, signifies the
unanimous convergence of the views of all reputable jurists of a particular era on a given
point of law.[32] No direct Quranic text or tradition, however, exits on the authority of ijma' as
a source of law.[33] Accordingly, the mere fact that a particular view is taken by all the qualified
jurists of an era on a particular issue does not suffice to make it binding on the qualified
jurists of another era. For this reason, Shi'ah jurists have not attached significant contribution
to ijma' as a source of law. In their view, ijma' may be seen as a separate source of law where
two requirements are met. First, there is no specific authority on a given point of law in either
the Quran or the tradition. Second, it has to be possible to demonstrate that this unanimous
view did in fact emanate from the Prophet or an Imam, for example because it was based on a
particular rewayah from the Prophet or Imam on the issue but which was not recorded in
writing.[34]

Such a definition makes the scope of ijma' as a source of law much too narrow. It is in fact an
indication of, and its authority is due to, the view of the Prophet or Imams which makes it at
best a special appendix to the second source of the law, the tradition rather than a separate
source of law.[35] On this construction, unanimous convergence of the jurists on a legal view
after the era of Imamah cannot in principle be binding on the jurists of the later time.[36]

Nevertheless, some jurists have tried to establish that the consensus of Shi'ah jurists living in
any given era on a particular question of law should be followed as a source of law. In giving
validity to such a broad consensus, they linked it to the theory of Imamah and argued that its
authority derives from the view of the Absent Imam since a consensus of Shi'ah jurists
reflects in fact his view. Historically, Shi'ah jurists have relied on three significant successive
theories to demonstrate such a broad construction.[37] First, consensus creates the 'feeling'
(hess) that the absent Imam agrees with it.[38] Second, had the absent Imam not agreed with the
point at issue, he would, by his 'grace' (lutf), have prevented the formation of the consensus
on a wrong opinion.[39] Third, it generates a 'conjecture' (hads), that it accords with the view of
the absent Imam.[40]

However, although ijma' in the strict sense may be possible at the period of the Prophet or
Imams since the Muslim community had directly obtained the religious precept from the
Prophet or Imams, it is arguable in the broad sense. It has rightly been submitted [41] that the
theory of ijma' in the latter sense as a source of law was taken out of the Sunni framework
and transported with modification into the Shi'ah context. It hardly accords with other tenets
of Shi'ah law. Treating ijma' in this sense as a source of law will generate inconsistencies, if
not some inherent contradictions, within the distinct Shi'ah doctrine of Ijtehad which generally
forbids jurists qualified as Mujtahed to follow others.[42] Moreover, unanimous view may be
based on their understanding from a particular rewayah which is not received later by other
jurists or was based on supplementary sources such as bana al- u'qala which will be
discussed later.[43]

Given the above discussion, it can be said that a particular view being popular among most
Shi'ah jurists (which is technically called in Shi'ah jurisprudence "shuhrat fatwaei") should
not a fortiori be regarded as an authority for others, although it may be a persuasive source
depending on the degree of eminence of the concurring jurists.[44]

2.1.2.2 A'ql

Historically, relying on a'ql (literally, the act of withholding or restraining and in terminology
of the jurists, 'human intellect', 'reason') as a source for inferring the law of Shari'ah comes
back to the early centuries of the development of Islamic law. However, it has formally been
recognised by Shi'ah jurists later than Sunni jurists.[45] During the period of Imamah of Shi'ahImams since Shi'ah scholars could easily refer the new cases to the Imam and ask the relevant
religious precept (hukm), they did not feel the necessity to consider whether human intellect
could be relied as a source of the law of Shari'ah, albeit some eminent Shi'ah scholars relied
on their rational analysis to extract the detailed rules from the primary sources at a very
limited scale. It was only after the Occultation of the Twelfth Imam that the Shi'ah
community was forced to infer independently the detailed rules from the primary sources. Yet,
up to the early fifth/tenth century no express mention can be found in Shi'ah scholars' works
in respect of the 'reason' as a source of law. Some eminent Shi'ah jurists occasionally
employed 'reason' for the purpose of inferring detailed rules from the textual authorities but
they did not consider it as an independent but only as an ancillary source of law. It was often
used in the field of theology (e'lm al- kalam) rather than feqh. The late Ibn Idris (558-598/1163-1203) was perhaps the first Shi'ah jurist who addressed specifically a'ql as a
source of law of Shari'ah in Shi'ah jurisprudence.[46] After him the jurists started to examine it
as a source of law in the methodology of feqh (e'lm usoul) and currently almost all Shi'ah
jurists formally recognise a'ql as a source of law.[47]

Examination of Shi'ah jurists' discussions in respect of the reliability of a'ql as a source of
law in the e'lm al- usoul shows that the primary use of this source is where there is no textual
source (nass).[48] Where no textual authority is available on a legal point it is generally held that
whatever a'ql judges with respect to that issue, share' (the Islamic-law maker) would judge
the same. The rule is technically called "qaedah al- mulazemah". The rule is based on two
well-settled principles in the Shi'ah school of thought. The First is that "all religious precepts
derive from a real interest or expedient (maslahat) and mafsadah (ugliness). That is, in any
case in which a particular act is required it is so for a maslahat, or, in any case in which a
particular act is prohibited it is so for a mafsadah. Second is that the human intellect in some
cases is able to find out certainly what is "good" (hasan) and "evil" (qabih), without being
guided by religious rules.[49] In any case where no particular nass exists and the jurist by taking
into account the results of scientific research and rational analysis makes certain that a
particular act has a maslahat which is to be observed or has a mafsadah which is to be
avoided he can judge that that particular act is to be done or avoided (as the case may be).[50]

A'ql is further used to find out the manat (ratio) of the existing rule. That is, if a jurist, by
examining the authority, nature and the circumstances in which an existing religious precept
was ruled and stripping off the surrounding particularities, can with certainty identify the
general philosophy behind the hukm, he would be allowed to apply it at similar situations. The
process of finding out the manat, which closely resembles the English law ratio decidendi, is
called "tanqih al- manat" (cleaning out the quintessential or the prime criterion).[51]

The third case in which a'ql is used as an authority is where the jurists are seeking to establish
general principles upon which the detailed rules can be inferred. Mention may be made here,
as examples, of the practical or rational principles (usoul al- a'maliyah or al- a'qliyah).[52] It is
also employed to support textual authorities which are available on a specific issue and to
understand the real intention of the Islamic-law maker by interpretation of the textual
authorities (nusous),[53] and, find out the rational requirements (lawazim -e- a'qli) of the
existing rules.[54]

However, in spite of the fact that Shi'ah jurists have formally recognised a'ql as an
independent source of the law of Shari'ah and have examined it in detail in the methodology
of the jurisprudence (usoul al- feqh) with strong support, they are very cautious and little
courage can be found in practice.[55] For this reason, few cases can be found in Shi'ah
jurisprudence in which they have relied solely on a'ql as a source to infer the relevant religious
precept. In any jurisprudential case where some jurists relied on a'ql as an authority it is in
fact employed to support some textual authority (nass) available on the issue. Even in the
methodology of feqh where it is often relied on as an authority to establish general principles
from which detailed rules can be inferred, it is used as an ancillary authority to support textual
authority. No general principle can be found which is solely based on 'reason'. The use of a'ql
as a tool to identify manat al- hukm is also subject to a rigid limitation, it must be qate'i
(certain) in the mathematical sense.[56] Any uncertainty would make it unreliable.[57]
Accordingly, the so-called Rationalist approach is not in the final analysis, a licence to an
independent and free rational argument but is in fact an allowance for the limited exercise of
'reason' within the pre-established bounds of basic dogmas. Upon this source it cannot be said
that a'ql judges as an independent source, but it is employed as a tool to discover the intention
of the Islamic-law maker where there is no direct authority under any of the preceding three
sources, to identify the rational requirements (lawazim-e-a'qli) and the philosophy (manat)
of the existing rules, to understand the real intention of share' by interpretation of his words
and deeds or to support the contents of textual authorities.

2.2 Supplementary Sources

Although it is commonly said that the only sources within which the jurist is required to infer
the law of Shari'ah are those described above, these sources have been, and are still being,
supplemented by the working of other sources. Among these u'rf (custom), sometimes called
bana'at al- u'qala,[58] is of particular significance in practice.[59]

The role of community practice (custom) as a supplementary tool in the process of inferring
the law of Shari'ah is, in principle, undeniable. In two cases custom is commonly relied on by
the jurists.[60] First is where the Islamic-law maker impliedly referred to the custom. This is
where the subject of religious precepts is a customary matter. Reference can be made to those
authorities which contained terms such as a'qd (contract), bay' (sale), a'yb (defect), darar
(harm) and so on without any reference to the standard of determination of those terms. The
second is to find out the concept of words of written authorities (Quran and tradition). To that
extent, the jurists accept custom as a source of law without any doubt. But in those cases
custom is not relied on to infer the law of Shari'ah but used to identify the object (mesdaq) of
the prescribed religious rule or to show the concepts and meanings of the words used in the
written authorities so as to establish what is the 'appearance' (zuhour) of the authorities.[61]

However, a controversial question is whether local or national customs can be relied on as a
separate source of the law of Shari'ah, particularly where there is no authority from the
sources already discussed. In this regard a distinction has been made between those practices
which were existent or gradually formed at the time of the Prophet and Shi'ahImams and
those modified or formed later. Shi'ah scholars accept the fact that a number of Quranic rules
have their origin in pre-Islamic Arabian customs.[62] The same is true as to the Sunnah. On this
fact, it is a well-accepted view that the early Islamic rules, whether prescribed by Quran or
contained in the tradition, are divided into 'affirmatory' (imzaei) and 'foundationary' (ta'sisi)
precepts, being, respectively, those already existing and upheld and those freshly laid down.[63]
On this view, if any particular custom at any era could be linked to the era of the Prophet or
Imams it would be reliable even there is no particular formal authority on the issue. However,
it is in fact an indication of Sunnah rather than a separate source of law.[64]

The significant question is how far customs formed after the period of Imamah can be relied
on by the jurist in inferring the law of Shari'ah. The jurists commonly cast doubt on the
authority of such customs as a source of law. According to them the community practice has
to follow and accord with the religious rules. The mere fact that a particular act or behaviour
becomes a social and legal norm in a society or a local community does not suffice per se to
say that it is religiously binding. It could have derived from various factors which were
beyond the scope of religion and do not clearly indicate that the Islamic-law maker consented
to it. A particular custom will be regarded as a binding religious rule where it is proved that it
was formed at the period of the Prophet or one of the Imams and approved by them, whether
expressly or impliedly.[65]

2.3 Assessment

The arrangement of sources according to their formal binding force does not necessarily
reflect the respective order and significance of the contribution they have to the development
of the law under this system. For instance, although the Quran is considered the God-given
law and formally remains uppermost,[66] the normative verses (ayat al- ahkam) constitute its
small portion (500 out of over 6000 verses) and provide only a small fraction of the overall
body of detailed rules of the law of Shari'ah.

In contrast, Sunnah as narrated, apart from the question of authenticity (which is in way akin
to the question of the reliability of English case law reporting in medieval times),[67] are
considered too important for the jurist. Its significance for Shi'ah law is undeniable. The
vacuum left by the few general principles, or scanty and dispersed rules, of Quran on any
given legal topic is mostly covered by tradition.[68] However, tradition, although it is many in
quantity, can only meet a portion of the modern needs. Masses of new events (masuel
mostahdetheh) with which society of the time of the Prophet and Imams was never concerned
arose later and must be answered. Today Muslim communities encounter a huge volume of
modern situations in their various relationships. Fairly, it is hard to accept that tradition will
be an adequate source to meet them.

As regards Ijma', it is fair to say that this source has very little contribution to the detailed
rules of law. There are a few cases in which the jurists have relied solely on this source. If it is
relied on in some occasions it is in fact as a supplementary source rather than a separate one.
Ijma'even in its broad sense, apart from the theoretical objections made as to its authenticity,
could play its role in the early stages of the development of Islamic law when the community
was fairly small, eminent jurists of the era were few, and the views of all jurists concerned
could be obtained. Thereafter its role diminished and it may be said that it soon died out as an
active source of the law for the practical impossibility of obtaining it. Accordingly, the only
place left for Ijma' as a source of law is the convergence of the jurists of the earlier era
obtained directly (which is called Ijma'muhassal) or those consensuses cited by the jurists,
that is Ijma'manqoul, although a number of jurists have cast doubt as to the authenticity of
the quoted consensuses.[69]

Although a'ql is in theory recognised by Shi'ah jurists and it could have been an important
tool for developing this system, in practice little use can be found in jurisprudence to infer the
law of Shari'ah. It is relied on primarily to support the textual authority (nass) available on
the point or to interpret the text of the written authorities. Although it is also relied on to find
out the ratio (e'llaht or manat) of an existing rule in order to extend to the similar situations
or to infer a religious precept where there is no textual authority, it is subject to a rigid
restriction which is hardly obtainable in practice.[70] This is because few cases can be found
where a jurist is able to find out the binding maslah, mafsadah or the ratio of an existing rule
with full certainty. In any legal case, some doubt will necessarily exist and consequently, this
source, as almost all jurists suggest in the present time, should not be reliable.

Custom and the traditions of the learned (bana'at al- u'qala, pl. of bana' al- u'qala), as
already seen, have little contribution to the development of the law in view of Shi'ah jurists.
Almost all jurists have seen custom and community practice as a tool for understanding the
meaning of the written authorities and identifying the object of prescribed rules. They are not
used as separate sources for the law. Resistance on the basis that any community practice
should be effectively linked to the period of the Prophet and Imams renders this supplementary
source useless, at least at the present time which is so far from that period.

As a general conclusion, it can be said that the significant practical sources in the present
Shi'ah jurisprudence are the Quranic normative rules and those contained in rewayat, a mass
of scattered texts contain various general and specific rules. But, as any one can easily realise,
the legal rules which are prescribed under Quranic verses or those which are contained in the
rewayat are (apart from the question of forged rewayat) very limited. They are not able to
meet the thousands and thousands of legal issues with which modern societies are concerned.
Certain 'practical principles' (usoul -e- a'maliyah) such as isteshab (presumption of the
continuance of the status quo ante until the contrary is proved and baraah (acquittal), are, by
nature, procedural presumptions rather substantive law. They are not able to meet a mass of
modern needs which require substantive law.

2.4 Shi'ah Law and Modern Needs

Shi'ah jurists were and are still confidently claiming that Shi'ah law is able to provide a
modern legal system and to tackle any modern needs which arise in any aspect of human life.
The establishment of the Islamic Republic of Iran was the first experience for Shi'ah jurists at
a large scale to show the capability of Shi'ah law to respond to various modern needs. But
after over two decades little development can be found in practice. The significant question is
therefore how this system can adapt itself to changing circumstances and provide a proper
system of law.

This question has recently attracted the attention of Muslim scholars and entirely different
views have been offered. However, some of these suggestions are theological in nature and
beyond this study. What follows is an attempt to present a method by which any jurist is able
to infer the law of Shari'ah in respect of any new legal issue.[71]

2.4.1 New Reading of the Traditional Sources

As was seen above, the jurists commonly hold that bana'at al- u'qala can be relied on as a
source of law only where they were formed at the time of the Prophet or Imams and approved
by them. However, approval is defined in a very narrow sense, that is, if a particular public
practice is formed within the Muslim community and acted upon at the time of the Prophet or
an Imam. In such a situation, the infallible leader (Prophet or Imam) had a duty to lead the
Muslim community to the right conduct. If he did not reject that common practice, as contrary
to the law of Shari'ah, his silence was an indication of his consent.

When relying on the community practice, it is suggested to distinguish between ibadat
(devotional rites) and mua'amalat (social conduct). Where a particular practice emerged in
respect of a purely religious rule regulating the relationship of man and God it may be argued
that it should be reliable only where it is proved that it was formed at the time of the Prophet
or Imam and was approved by them. However, such a rigid requirement is not necessary
where a common practice is concerned with regulating the legal relations of individuals and
social institutions. It would be sufficient if it is proved that a particular practice becomes
common within the community as a whole or a particular community (as the case may be a
general custom or a particular one) as long as it does not conflict any settled Islamic rules.

The suggestion can be justified on the basis of the following reasons. First, it is in line with the
prophetic rewayah which says: "Whoever establishes a worthy tradition he would be rewarded
for any person who acts on it".[72] It can also be justified on the basis of the Quranic verse
which provides "ufou bel u'qoud" (You are required to respect your covenant) [73] and the
Prophetic rewayah which provides "al-mu'menoun e'nda shuroutehem" (All Muslims should
respect their covenants).[74] The terms "u'qoud" and "shurout" (covenants) are general and
cover any covenant, whether legal covenant such as contract, or social one. Bana'at al- u'qala
formed within Muslim community are in fact social covenants which are gradually formed
among them because they felt their existence necessary for their life.

Second, it can be justified on the basis of implied approval (taqrir) of ma'soum (infallible
leader) through a new reading of the implied approval. It is suggested that taqrir signifies the
approval of any actual or potential practice within the Muslim community. This is based on
the well-settled belief between Shi'ah scholars that the Prophet and Shi'ahImams had divine
knowledge and could anticipate that their followers after their period would gradually tend to
some practice because of their modern needs and it was their duty to give the Muslim
community a guideline to avoid from the formation of and following those common practice
which would arise in the future if they did not agree with them. Since they did not reject
expressly reliance on practices formed later, despite their anticipation that they may take
place, they therefore implicitly recognised those practices formed after their period.
Accordingly, it can be said that any rational norm which is fully adopted and acted on by the
Muslim community, because they are u'qala, is deemed to have impliedly been approved by
the Prophet and Imams.[75]

Bana al- u'qala can also be regarded as a source of the law of Shari'ah in accordance with
the theory of hujjiat -e- zann -e- mutlaq (a fully satisfying legal proof of general
preponderance) in accordance with the theory of insidad -e- bab -e- e'lm (closure of the door
to certain legal knowledge). To explain, at the present time it is conventionally held that the
mere zann (conjecture), even a strong one, at a point of law is not valid unless it is specifically
validated by some certain Islamic authorities. In this case, those doubtful authorities are called
"zann khass" (specific conjecture, as opposed to "general conjecture"). In inferring the law of
Shari'ah, the jurist must either rely on an authority which certainly leads him to the religious
precept or on those non-certain authorities whose authenticity is certified by a certain
authority. In any case where there is no qate'i (certain) authority or authentic zanni authority
(which are called "dalil ijtihadi") the jurist is required to rely on some practical authorities
(usoul al- amaliyah, which are called "dalil faqahati), that is, baraa'h, ihteyad, takhyir and
isteshab.[76]

It is to be noted that these jurists do not deny that if the existing authorities, as already
described, are not sufficient to meet the needs the jurist would be able to rely on other
conjectural authorities. But in actual fact almost all jurists currently assume that there are
sufficient certain and authentic zanni authorities to lead the jurist to the law of Shari'ah in any
new situation and in the few circumstances where the jurist is not able to infer the relevant
religious precept by referring to those authorities he would be able to resolve the problem by
relying on a proper practical principle (asl-e-a'mali). However, this view can only be justified
where it is proved that there are sufficient authentic authorities to meet new situations. It is
submitted that such authorities are not at hand. It was pointed out before that the Quranic
verses and the tradition are insufficient to meet the mass of new questions which arose after
the period of the Imamah.[77] The inadequacy of the consensus was also examined.
Accordingly, the only way is to rely on the zann where there are no authentic authorities from
the Quran and tradition in order to infer the law of Shari'ah. The authenticity of such zanni
authorities can be justified by the theory of hujjiat -e- zann -e- mutlaq. A clear instance of
such a non-authentic zann is bana al-u'qala..[78]

One may, however, argue that the practical principles (usoul al- amaliyah) such as baraat
will operate before these conjectural (zanni) authorities come to operate. It is arguable, since
the subject of the practical principles is doubt (shakk) to the religious precept (hukm-e-shar'ei), while it is assumed that for the reason of lack of adequate authentic conjectural
authorities e'lm-e-ejmali (literally, general or unspecified knowledge) still remains.[79]

Having proved that bana al-u'qala. can be relied on as a source of Islamic law, the question
arises how to identify such a common practice. For this purpose, some concrete guidelines
should be provided to lead the jurist who has to rely on this source. It seems that the best and
useful solution is to study modern legal systems and international and regional conventions.
Any legal rule which has practically been experienced within a legal system and its advantages
and disadvantages examined by the courts and academic writers can be taken into account as
indication of bana al- u'qala. The jurist would be able to look at the history of formation and
development of these rules and their practical merits and demerits to make sure that they are
clear indication of bana al- u'qala and then compare them to the settled religious principles. If
no contrary rule, whether express or implied can be found, those rules can be accepted as legal
rules in the jurisprudence.[80]

2.4.2 New Reading of the Rational Analysis

A further technique which can be utilised to enable this system to adapt itself to changing
circumstances is to present a new reading of the rational analysis of the existing rules. It is
commonly held that Shi'ah law prohibited the method of applying a straight analogy for the
extension of an existing particular rule to a similar instance (qiyas), which is adopted by some
Sunni schools.[81] Directly, no existing rule on a 'particular' instance can be extended to
another 'particular' instance, no matter how similar the two cases may appear to be. However,
the Shi'ah school has recognised a composite analytico-syllogistical process known as tanqih
al- manat (or -malak) to circumvent the prohibition of applying qiyas. The method is
motivated by some preconception of perfect law. By the process of tanqih al- mamat the basic
reason or the core of the rules will first be analytically stripped of the surrounding
particularities, and then the generality of the rule so obtained will be applied to the case at
hand in the guise of syllogism (qiyas, in a logical sense).[82]Tanqih al- manat in the sense
described above, has been, however, made subject to a rigid qualification. By the process of
tanqih al- mamat the jurist must certainly discover the criterion of the existing rule. Any
doubt as to its real criterion would render the syllogism unreliable.

It seems that such a qualification cannot be acceptable in all cases. It is suggested that a
distinction should be made between pure religious laws (ibadat) and legal rules (mua'malat).[83]
As regards the first, which regulate the relationship of man and God, it can be said that
religious rules requiring man to do or refrain from doing a particular action may be based on a
criterion which cannot be identified by human intellect. But such a statement cannot be true as
regards those legal rules which are prescribed to regulate the legal relations of human being.
Those rules are commonly based on a realisable criterion. Accordingly, it would fairly be
possible to realise the real criterion of the existing rules and to extend the rules thus obtained
to the new instances. The mere fact that man cannot realise with certainty the real criterion
and that in any case there is some possibility that other factors might have been relevant in
regulating the existing rule, should not affect the argument. If to that extent the capability of
human intellect is doubtful, no where it will be reliable and as a result no jurist can infer the
law by the process of ijtehad, since in any case there would be some contrary possibility.[84]

2.4.3 Summary and Conclusions

From the above discussion it was made plain that the Quranic rules and tradition cannot be the
adequate sources to meet the new situation. Owing to the impracticability of obtaining it, the
consensus of the jurists, unless formed in the initial formative phase of Shi'ah law, has little
contribution to the development of the law. Accordingly, the best, and most practical, way to
adapt this system to new situations is to rely on rational analysis and well-settled legal
practice among human societies. Various arguments were rendered to prove the latter as a
valid source for the inference of the legal rules. Likewise, it was seen that rational analysis of
existing rules would be an important technique for adaptation of this system to modern needs.
There is no reason to justify that the technique of tanqih al- mamat should certainly lead the
jurist to the real criterion of the existing rules.

However, in order to make a balance between some of the polarised needs and demands of
societies - stability and change, security and flexibility, certainty and adaptability - some
concrete guidelines are required. For this purpose, it was suggested that the settled rules in
modern legal systems and international and regional conventions can be useful solutions for
this system in order to identify the common practice of the learned (bana al-u'qala.).

This demand has not been seriously taken into account in English sale of goods law. Although
English Sale of Goods Act 1979 has addressed 'specific performance' in s. 52, it does not
recognise it as a right for a victim of breach but it is a form of relief that is left to the
discretion of the court and, as will be shown later, English courts are very reluctant to use this
discretionary power in contracts for the sale of goods.[86] By way of contrast, the Convention
has recognised specific performance as a general remedy (Art. 46).

Likewise, Iranian Civil Code has given the primacy to specific performance.[87] However, the
Code failed to deal with the issue in way consisting with the modern sale transaction. In
Shi'ah law, notwithstanding the primacy is given to this remedy,[88]Shi'ah jurists have failed to
discuss this remedy in detail. It is, therefore, necessary to deal with the issue first under
English law and the Convention in order to identity the modern needs and then to examine
them under these two systems.

As far as the present discussion is concerned, the most practical question which arises here is
whether non-existent goods such as "future goods", "goods to be manufactured or acquired by
the seller after the conclusion of the contract" can be placed into the category of 'specific
goods' for the purpose of application of s. 52. In this connection, some authors have shown
that no clear answer can be found in case law.[95] For instance, in a case decided before the Sale
of Goods Act was passed,[96] the court held that a contract to sell 200 tons of potatoes from a
particular crop to be grown by the seller was to be a sale of "specific" goods for the purpose
of treating the contract as frustrated under the rule in Taylor v. Caldwell.[97] Similarly, in
Varley v. Whipp[98] the court considered a reaping machine to be specific goods, when the
contract was for the sale of a specific second-hand self-binder reaping machine which at the
time of making the contract, the seller did not possess and had still to acquire. Nevertheless, in
In re Wait,[99] it was said that the plain language of the Act leaves no room for giving such a so
wide meaning to the term "specific goods", so far as the application of the Act is concerned.

Academic writers have also taken up different opinions. For instance, Professor Treitel
suggested [100] that there is no linguistic difficulty or logical reason in identifying and agreeing
on such goods as specific goods. Accordingly, where a contract is made to buy a certain
quantity of cars to be come from the seller's factory the subject-matter of the contract seems
to be identified and agreed upon, even if it does not yet exist, at the time the contract is made.
In contrast, some others have said that "it is probably safe to say that future goods can never
be specific goods within the meaning of the Act."[101] But in response to the latter view it has
been said that although there is reason enough for acceptance of this view in the context of
passing of property,[102] there is nothing which requires one to read into the definition of
"specific goods" a condition that they should presently exist.[103]

As far as the language of the Sale of Goods Act is concerned, one may argue that there is,
generally, no logical reason for the non-application of s. 52 of the Act to non-existent goods.
For, on the one hand, the definition of specific goods in s. 61 is not conditional on the goods
existing when the contract is made. Again, non-existent goods are not excluded by the
provision of s. 61(1) of the Act. On the other, the goods may be described definitely,
particularly and specifically although they are non-existent. It can therefore be suggested that
future goods can be the subject of specific performance, so long as, they are identified and
agreed upon by the parties, and they can be considered as a specific goods when they are
sufficiently identified. Accordingly, the main basis for considering the goods as specific, is the
agreement of the contracting parties in respect of the goods, specifying them in a way which
leads to no misleading, ambiguity or vagueness about their nature, quality or quantity, no
matter whether they presently exist or not, or whether they have been produced or will be
produced in the future.

However, it would be better to make a distinction between two different types of future goods:
those which are non-existent and those which exist but are not yet owned by the seller. In
addition, non-existent goods can be further sub-divided into crops (etc.) to be grown and
products to be manufactured. One may argue that the treatment of these different items should
differ: for instance, where the seller contracts to sell a particular item which he has not yet
bought - as in Varley v. Whipp - then the goods clearly are specific. The position is different
where the contract is to sell something not yet in existence. However, it is easier to regard a
particular item to be manufactured as "specific" than items to be grown - as in Howell v
Coupland etc. - unless the contract is something like to deliver "the first 1000 tonnes
harvested from a particular field".

2.1.2 Ascertained Goods

Unlike the term 'specific goods', the expression "ascertained goods" is not defined by the Act.
However, case law has made efforts to define the term. For instance, in In re Wait,[104] Atkin
L.J. observed that in the present context,

"'Ascertained' probably means identified in accordance with the
agreement after the time a contract of sale is made".[105]

According to the above definition, the term means goods originally unascertained which are
identified in accordance with the parties' subsequent agreement after the contract of sale is
made. However, in Thames Sack and Bag Co. Ltd. v. Knowles & Co. Ltd it was said that

"ascertained" in s. 52 "means that the individuality of the goods must in
some way be found out, and when it is, then the goods have been
ascertained".[106]

Similarly, in Wait & James v. Midland Bank,[107] it was stated that "ascertainment" might take
place by any method which is satisfactory to the parties concerned. Moreover, a part of the
goods purchased from a bulk which is specified, may become ascertained by process of
exhaustion, which, was said to be "the only effective way of ascertaining the goods which are
in bulk".[108]

Examination of the above-mentioned cases shows that the term "ascertained" refers to some
process subsequent to the contract by which goods are sufficiently [109] identified or otherwise
earmarked by the seller as goods he intends to use in performance of the contract.[110] However,
there will be no ascertainment of part of a larger bulk of goods until the part has been actually
or by way of exhaustion earmarked and segregated from the bulk.[111]

2.1.3 Specific Performance and Unascertained Goods

On its face s. 52 appears to apply only where the goods to be delivered are of specific or being
sufficiently ascertained after the contract is made and therefore does not apply to an important
category of contracts, those for sale of unascertained goods still to be ascertained.
Accordingly, the buyer will not benefit from the provision under s. 52 where the seller has
failed to perform his delivery obligations where the goods which should be delivered to the
buyer under the contract are not sufficiently ascertained.[112]

Yet, the question is not so clear as it seems in its apparent face. On the one hand, it might be
argued that where the language of s. 52 is combined with the belief that the Sale of Goods Act
is designed to provide a comprehensive code, one may conclude that the remedy will not arise
where there is a contract for the sale of unascertained goods not yet ascertained.[113] On the
other hand, there is a possibility to say that s. 52 may be applied to the case of unascertained
goods. This is because first, the language of the section itself does not seem to exclude
expressly its application to such cases. Secondly, the idea that the Sale of Goods Act is a
comprehensive code is arguable.[114] Accordingly, the answer depends on whether or not the Act
presents an exclusive code of remedies available.

The question was particularly addressed in In re Wait.[115] In that case, Atkin L.J. took the view that where a matter is dealt with by the Act, the treatment was intended to be exhaustive.[116] Unlike the firm view of Atkin L.J. that s. 52 codifies the buyer's rights, in Sky Petroleum Ltd. v. VIP Petroleum Ltd[117] some doubt was thrown on the traditional idea.[118] In that case, the judge did, in fact, grant specific performance of a contract for unascertained goods.

Although the decision in Sky Petroleum may be welcomed as commercially realistic, it is hard
to reconcile with the language of s. 52(1) of the Act and with both earlier and subsequent
authorities.[119] Moreover, neither s. 52 nor In re Wait were referred to in the judgement. Accordingly, it is difficult to say that in the case of unascertained goods not yet ascertained
the buyer can apply for specific performance. In addition, assuming that the jurisdiction to
award specific performance exists where the subject of sale is unascertained goods, it is likely
to be exercised only rarely, for by definition, unascertained goods will rarely be unique. As a
result, the court would hold that damages will be an adequate remedy.

Moreover, the case may be, as Goulding J. himself pointed out in his judgement, justified on
the special facts of the case. In a case of the nature of Sky Petroleum no question of specific
performance would normally arise because the filling station could go and buy petrol on the
market and be compensated adequately by damages, but at the time of the case, because of the
Arab oil embargo and the related events of 1973, there was little prospect of the plaintiffs
being able to procure alternative supplies from another source so that alternative supplies
were not available to the buyers. Moreover, as some authors pointed out,[120] in the particular
case a substantial part of the buyers' loss would not have been recoverable in damages
because of the remoteness rule. In addition to the above-mentioned factors, in that case
damages would clearly not be an adequate remedy because, as Professor Atiyah pointed out,[121] "there was a real danger that the plaintiffs would be forced out of business if the defendants
broke their contract in the very peculiar circumstances then holding".[122] In the circumstances
of that case, specific performance was a uniquely desirable and effective remedy. It was in
fact such peculiar circumstances which induced the judge to depart from the general rule.

2.2 When the Court Thinks Fit

The important feature of specific performance in English law is that it is not granted as a
matter of right to the aggrieved party seeking remedy, but it is an equitable jurisdiction whose
exercise is left to the court's discretion.[123] This is confirmed by the Sale of Goods Act 1979
which does not require the court to give effect the buyer's application for specific performance
but gives the court a broad power to give an order for specific performance "if it thinks fit".

However, it is to be stressed that this does not mean that the decision is left to the uncontrolled
fancy of any individual judge. A court may refuse to give effect the buyer's application for
specific performance, if to grant it in the particular circumstances of the case will defeat the
ends of justice.[124] For instance, Lord Parker, explaining the rule, observed:

"Indeed, the dominant principle has always been that equity will only
grant specific performance if, under all the circumstances, it is just and
equitable so to do."[125]

2.3 Grounds for Refusing to Order Specific Performance

Exercise of the court's discretion to award specific performance is guided by certain
principles. For instance, the court will generally not order specific performance of a contract
which involves personal services [126] or which requires constant supervision by the court.[127]
However, as far as sale of goods cases are concerned the adequacy of damages rule is the
main restriction on the remedy of specific performance.[128]

Under this rule, where complete justice can be achieved by damages, the plaintiff will be left
to his remedy at law.[129] In other words, the court gives specific performance instead of
damages, only when it can by that means do more perfect and complete justice.[130]

There is no clear rule by which the court can always examine the adequacy of damages test.
Generally, where damages fail to afford a complete remedy to the aggrieved party,[131] or the
amount of damages is impossible to be assessed,[132] they are considered an inadequate remedy,
and, consequently, specific performance is granted. The court will refuse to grant specific
performance when the plaintiff is able to obtain the equivalent to what he has contracted for
by damages.[133]

A clear instance can be found in Behnke v. Bede Shipping Co. Ltd..[134] In this case, specific
performance was granted because the subject-matter of the sale was a unique thing, i.e., a
ship. However, it is not accurate to say that the buyer of a ship will always be able to resort to
the provision of s. 52. In CN Marine Inc. v. Stena Line (The Stena Nautica (no. 2)),[135] it was
held that as a matter of law, an order for specific performance could be made in respect of a
vessel but it, in no way, follows that there should be an order for specific performance in
respect of every contract for the sale of a ship.

The court's reluctance to grant specific performance is illustrated by the case of Societe Des
Industries Metallurgiques S.A. v. Bronx Engineering Co. Ltd.[136] In this case, the defendants
had wrongfully repudiated a contract to deliver goods manufactured by them to the plaintiffs.
Although the subject of sale was over 220 tons in weight and cost around £270, 000, the
evidence showed that it would take the plaintiffs between nine to twelve months to obtain
similar goods from an alternative source. Even this serious delay failed to persuade the Court
of Appeal that the case was a proper one for grant of specific performance, for the goods were
of a type obtainable on the market in the ordinary course of business [137] and the additional loss
suffered by the plaintiffs as the result of the delay would be covered by an increased award of
damages.

Damages may be inadequate, even when the buyer can buy goods similar to those in the
contract, if the fluctuation of the price is so great, that the party who is obliged to accept
damages cannot be sure of being put in as good a position as he would have been if the
contract were specifically performed and the goods supplied.[138] Furthermore, where the goods
or items are unique, specific performance may be granted. Thus, "the more unusual the
subject-matter of the contract, the more difficult it becomes to assess the plaintiff's loss'',[139]
and "damages can be readily assessed but not so easily collected".[140] Nor can damages be
described as an adequate remedy when the defendant is unable to pay for them, because of his
insolvency.[141] Under these circumstances specific performance is justified and will be
decreed.[142]

Whether damages are adequate remedy is a question of fact in each case which is to be
decided according to the circumstances of any particular case. Accordingly, "[I]t is unsafe to
rely on decisions reached on other contracts and in other circumstances''.[143] It seems that the
exercising of the inherent discretionary power by the court, varies from one court to another,
and there are no reliable criteria to justify or predict the conduct of the court in ordering
specific performance or granting damages in a case where there are specific or ascertained
goods, such as a ship or a machinery or some articles which are not easily obtainable.[144]

However, it is to be emphasised that it does not follow that specific performance will
necessarily be granted because damages are not an adequate compensation. Above all, the
onus is upon the plaintiff to justify the claim that damages would not achieve justice and that
he "the plaintiff" should not be compelled to accept them.[145] The plaintiff may fail to prove
that the goods are unique, and consequently will not obtain specific performance, but
damages. The court will generally enquire in any case into all the circumstances, in particular
any hardship which would be imposed on one party or the other by giving or refusing specific
performance. This reflects a combination of two policies; the general feeling that specific
performance is usually not necessary in the case of goods and the general equitable principle
that specific performance is not be granted mechanically and that all the circumstances are to
be considered.[146]

Buyer's Right to Demand Cure and s. 52 of the 1979 Act. As the law stands presently, in
English law, where the seller has made defective delivery the buyer is primarily entitled to
reject the non-conforming delivery and terminate the contract and/or claim for damages, as
some authors suggest, or to reject it and wait for seller's cure and/or claim for damages, as
others suggest.[150] However, the question arises whether an injured buyer who has lawfully
rejected the non-conforming goods is entitled to require the seller to cure his defective
performance on account of s. 52 of the Act. As far as the language of the section is concerned,
there is no linguistic difficulty in recognising a limited right for an aggrieved buyer to demand
that the seller cure within the scope of the section.[151] The reason is that a demand to cure the
non-conformity, whether by delivery of substitute goods or repair the defects, is in fact, a
particular form of requiring to perform the contractual obligations specifically. In other
words, the buyer demands the seller to perform his duty to deliver goods conforming with the
contract terms (s. 27 of the 1979 Act). Accordingly, for this purpose, an injured buyer may be
entitled to apply the court for a decree ordering the seller to tender conforming goods or to
repair the defective goods provided that the requirements of s. 52 are met. That is, the
purchased goods are of commercially unique kind, such as ship, machinery that could not
readily be obtainable elsewhere, or the seller is the sole manufacturer so that the buyer cannot
obtain them in the market or damages do not afford an adequate remedy to him. Under such
circumstances, the court may exercise its discretionary power to order the seller to cure non-conforming goods.

However, as far as the right to demand cure by repair is concerned, the buyer will have little
chance to persuade the court to give effect to his application, since cure by repair will
normally involve personal services and require constant supervision by the court in which
circumstances the English courts, as pointed out above, are reluctant to order the party to
perform his obligations specifically.[152] Moreover, in the case of sale of unascertained goods, it
is quite possible to say that the buyer is not basically entitled to demand the seller for delivery
of replacement. For, after rejection of non-conforming goods the substitute goods are not
ascertained. Accordingly, the case will be outside the scope of s. 52.

By virtue of Art. 46(1) of the Convention, "The buyer may [153] require performance by the
seller of his obligations unless the buyer has resorted to a remedy which is inconsistent with
such requirements." The language of the provision seems broad in scope. It may be invoked in
a wide variety of circumstances. It does not make any distinction between different sorts of
breaches. The buyer can, therefore, require the seller to perform all "his obligations" under the
contract and the Convention. The most common example is when the seller fails to procure or
produce the goods or to deliver them at the right place (Art. 31) or date (Art. 33) provided by
the contract.[154] It may also be resorted to where part of the purchased goods are missing, or,
the seller refuses to hand over the documents and do all other acts necessary to fulfil the
contract as originally agreed.[155]

Art. 46(2) of the Convention gives the buyer a right to request the seller to deliver replacement
goods where the latter has delivered non-conforming goods. However, since it could be
expected that the cost of shipping a second lot of goods to the buyer and of disposing of the
non-conforming goods already delivered might be considerably greater than the buyer's loss
from having non-conforming goods, the Convention adopts the approach that a buyer will be
entitled to resort to require the seller to deliver replacement goods only where the non-conformity is serious enough to constitute a 'fundamental breach'. Accordingly, relatively
trivial defects do not justify a claim for substitute delivery, though in appropriate cases they
may entitle the buyer to require the seller to remedy the lack of conformity by repair (Art.
46(3)).[157]

The question which arises here is whether the buyer of specific goods can require the seller to
deliver substitute goods on the basis of para. (2) of Art. 46. Although the question was
expressly addressed by ULIS, which provided that the buyer could only require the seller to
deliver substitute goods where the sale related to unascertained goods,[158] the present
Convention does not expressly state that the remedy should only be applied to unascertained
goods. Nevertheless, it seems that the same rule should be applied here since under a contract
for specific goods the seller has not undertaken any duty other than to deliver the particular
goods. Requiring him to deliver substitute goods would be contrary to the mutual agreement of
the contracting parties.[159] However, it should be stressed that in the case of sale of
unascertained goods, the buyer is not required to request delivery of substitute goods; he can
keep the defective goods and resort to the remedy of requiring the seller to repair the lack of
conformity.[160]

The buyer may also be entitled to require delivery of substitute goods where the seller's
delivery only partially fails to conform with the contract. Art. 51, addressing the question,
provides: "If only part of the delivered goods is in conformity with the contract, Arts. 46 to 50
apply in respect of the part ... which does not conform." Thus, by virtue of Arts. 46(2) and
51(1) the buyer may accept the conforming parts and require the seller to deliver substitute
conforming goods for the defective units, provided that the lack of conformity constitutes a
fundamental breach of the contract with respect to the part affected.

3.2 Demand Repair

The remedy seems slightly stronger than that which is provided under Art. 46(2).[161] The latter,
as already seen, will be available only when the non-conformity constitutes a fundamental
breach of contract, while the former will be available "unless this is unreasonable having
regard to all the circumstances" (Art. 46(3). According to the wide language of the provision
the buyer will have a general right to require the seller to cure any form of lack of conformity
by way of repair except in cases where it is unreasonable, having regard to all the
circumstances.

The flexible language of the provision is designed to encourage a reasonable and flexible
approach to cases where the buyer can readily make repair, particularly when the seller's
facilities for repair are in a distant country. Accordingly, a buyer will not be entitled to require
the seller to make good minor defects which can readily be repaired by him.

The reasonableness of the request to repair does not depend on the nature of breach, but, as
some commentators have suggested,[162] on the character of the goods delivered, technical
difficulties and all the other circumstances. It would, for instance, be so regarded if repair is
impossible, whether because of the nature of the goods, such as agricultural products, or
because of technical difficulties. A claim for repair may also be unreasonable if the costs
involved are disproportionate to the price of the goods or if the seller is a dealer who does not
have the means for repair, or if the buyer himself can repair the goods at least cost.[163]

However, the Convention does not expressly provide that the right to ask for supply of
substitute goods should be subject to some requirements such as, economic facility or even
practical possibility. Accordingly, the question which arises here is: is the right to be subject
to some qualification, and, if so, what degree of "difficulty" or "impossibility" should be
sufficient to free the seller of his obligation to deliver substitute goods?[164] It seems that the
remedy under Art. 46(2) is to be restricted to the same qualification to which the remedy of
repair under paragraph (3) of the Art. is made. There is no clear argument to distinguish these
two remedies which are in fact both particular forms of the general right to specific
performance.

The point which deserves to be noted here is that unlike ULIS which entitled the buyer to
require the seller to repair provided that the seller was also manufacturer of the goods,[165]
under the present Convention such a right exists, no matter whether the seller is in a position
to repair the goods by his own means or by utilising the facilities of the market. If he is not in
a position to do so at all, this could indeed amount to unreasonableness. However, it should be
mentioned that the mere fact that repair is not possible, does not automatically turn the defect
into a fundamental breach of contract. But the buyer is left only with the right to claim a
reduction of price and/or compensation for damages.[166]

The first restriction is expressed by Art. 46(1). By virtue of this sub-paragraph, the buyer will
be entitled to apply for specific performance only when he has not "resorted to a remedy which
is inconsistent with this requirement". Despite the express language of this provision, it is not
quite clear which remedies are incompatible with the remedy of requiring performance. The
buyer's exercise of his right to declare the contract avoided would certainly be an
"inconsistent" remedy for this purpose.[168] This inconsistency will become plain when we look
at what Art. 81 provides. Under this Art., avoidance "releases both parties from their
obligations under [the contract] subject to any damages that may be due." The same is true in
the case where the buyer has claimed price reduction in the case of non-conforming delivery
pursuant to Art. 50,[169] since it would re-establish equivalence.[170]

The question whether a claim for damages would be an inconsistent remedy, depriving the
buyer of the right to require performance gives rise to some doubt. What is certain is that,
under the Convention, the buyer is not deprived of his right to claim damages by exercising his
right to claim performance (Art. 45(2); but is the converse necessarily true? The Convention
does not make the position clear. It has, therefore, been suggested that a distinction must be
drawn between the case of a claim for damages for late delivery and that of non-delivery.[171]
Where the buyer has claimed damages for delay in delivery he would not be pursuing a
remedy 'inconsistent' with that of requiring performance,[172] while a claim for damages for
non-delivery would be inconsistent with requiring performance, since such a claim for
damages can only be brought 'If the contract is avoided'.[173]

Although the requirement is expressly provided under Sub-para. (1) of Art. 46, it seems that
the buyer's right to resort to the remedies under sub-paras. (2) and (3) of this Art. should also
be subject to the same requirement; the buyer will not be entitled to require the seller to deliver
replacement goods or repair defects in the goods where he has already resorted to an
inconsistent remedy.

4.2 Forum Approach Rule

A further restriction is provided under Art. 28. Pursuant to this Art., "a court is not bound to
enter a judgement for specific performance unless the court would do so under its own law in
respect of similar contracts of sale not governed by this Convention." The provision which is
designed to compromise the divergent common law and civil law perceptions of the role of
specific performance in sales contracts of movables, empowers the state members' courts to
follow their traditional position. Three different situations may arise in this connection. The
first is where the court is under a mandatory duty to order specific performance under
domestic law. In this case, the court is bound to accept the buyer's application for specific
performance where the required conditions under the Convention are met. The second is an
extreme situation where the national law disallows the court to order specific performance. In
this case, the court is not bound to disregard its domestic law and to give effect to the buyer's
application even though the requisite requirements provided by the Convention are met. But, it
has discretion to decide the case either on the basis of the Convention or domestic law.[174] The
third case is where the court under the national law has a discretion as to whether or not to
accept the buyer's application. The question is whether the court would still be free to
continue its discretion under national law or it becomes bound to decide the case on the
Convention provisions. The answer depends upon how the word "would" in Art. 28 is
interpreted. Does the phrase under Art. 28 "unless the court would do so under its own law ..."
include the case where the court could accept the buyer's application under the national law?
It seems that the legislative history of Art. 28 suggests that in the latter case the court would
be able to disregard the Convention provision. This is because the UNCITRAL Draft Art. 28
used the word "could" instead of "would". Under that version, the court was certainly bound to
give effect to the buyer's application even it has discretion under its domestic law in the
similar cases. However, at the Vienna Diplomatic Conference, some common law delegates
opposed to this wording and as a result, the word replaced by "would".[175]

It is to be noted that Art. 28 only permits the court to deviate from the rules of the Convention
where the buyer may "require performance of any obligation of the other party"; it does not
affect the Convention's restrictions on specific performance.[176] For this reason the buyer
cannot, relying on the law of forum, seek to require a seller to deliver substitute goods even
though the lack of conformity is not a fundamental breach as required by Art. 46(2), or seek
for repair of the goods even though, pursuant to Art. 46(3), under "all the circumstances"
requiring the seller to repair is "unreasonable". Art. 28 applies only when the buyer is entitled
to performance in accordance with the provisions of this Convention.[177]

The Forum Approach Rule and the Remedy of Repair. As the language of Art. 28
shows, the Art. only refers to the term "specific performance". The question arises here is
whether the restrictive aspect of the provision covers the remedies of requiring the seller to
deliver substitute goods and repair defects. The answer depends on the meaning of "specific
performance" under Art. 28. The Secretariat' Commentary makes it clear that it does include
an order requiring the seller to deliver goods pursuant to Art. 46(2).[178] Does it include, in
addition, an order requiring the seller to remedy the defects by repair under Art. 46(3)?

The drafting history of the Art. does not help. During the preparation of the Convention the
question whether an order for repair should be covered by Art. 28 was not addressed. The
Secretariat Commentary also lacks any guideline in this respect, since the remedy was not
included in the 1978 Draft Convention recommended by UNCITRAL. It is therefore difficult
to determine whether the restriction under Art. 28 applies to an order requiring the seller to
repair defective goods under Art. 46(3).

Considering the purpose of Art. 28, one may, however, reach the conclusion that the
objections to an order requiring a seller to deliver contract goods or substitute goods should
apply as well to an order requiring the seller to make repairs, since in all of these cases, the
court is indeed requiring the seller to perform one of his obligations.[179] Nevertheless, treating
an order to require the seller to make repair as an order for specific performance would result
in an unreasonable consequence. Accepting the view that the right under Art. 46(3) is
enforceable subject to the court's discretion under Art. 28 would severely restrict this remedy,
since many legal systems are not familiar with it in their domestic law.[180] The legislative
history of the provision shows that the remedy was adopted as an alternative to the remedy of
requiring the seller to deliver substitute goods where the delivery of them clearly would be
wasteful.[181] If an order to repair is treated as an order to perform which is subject to the
discretionary power of the courts under Art. 28, this alternative remedy may rarely be invoked
because most courts could disregard it as a remedy inconsistent with their national law. Such
an interpretation would substantially restrict the effect of this remedy which seems to be far
from what the drafters had intended in incorporation of it into Art. 46.

It is difficult to find a solution for this problem. Both the language and purpose of Art. 28
support the approach that an order to make repair is to be subject to the restrictive provision
under Art. 28. Accordingly, the courts have the power to treat an application for repair as they
do one for the other forms of specific performance.[182]

4.3 Time Limit Restriction

The Convention provides a further requirement which is applicable to the remedies prescribed
under Art. 46(2) and (3). Under this requirement the buyer must request supply of substitute
goods or repair from the seller in conjunction with notice he has to give under Art. 39 so as to
inform the seller of the lack of conformity (Art. 46(2) and (3).[183] If the buyer does not request
cure at the very moment of giving notice, he has to do so within a reasonable time after he has
given notice to the seller that the goods delivered do not correspond to the contract. Failure to
request the remedy either in conjunction with the notice given under Art. 39 or within a
reasonable time thereafter would deprive him of the right to require the seller to deliver
substitute goods or repair the defects. On this provision, in the case of latent defects the buyer
may be entitled to demand that the seller cure the lack of conformity up to two years from the
date in which the goods are actually handed over to him.

4.4 Whether Goods Must be Ascertained?

The question arises here whether the goods must be identified before the buyer of
unascertained goods can resort to the remedy of specific performance. As far as Art. 46 is
concerned, it does not expressly provide that the goods are to be identified to the contract
before the buyer can resort to the remedy. Nor can such a requirement be inferred from Art.
46. Accordingly, in the case of sale of unascertained goods, identification of the goods to the
contract should not be regarded as a pre-requisite to a claim for the remedy of requiring
performance.[184]

On this interpretation, if a contract, for example, requires the seller to arrange for shipment,
the seller would be in breach of contract if he fails to do so [185] and as a result the goods are not
marked or otherwise identified. The seller's failure to arrange for shipment is presumably a
breach of one of his obligations under the contract and Art. 46(1) may thereby entitle the
buyer to apply for an order requiring the seller to arrange for carriage of the contract goods.

4.5 Whether the Purchased Goods Should be Unavailable in the Market?

A further possible restriction is that the buyer seeking to resort to the remedy is required to
show that he cannot reasonably procure the purchased goods from another source. The
Convention does not expressly provide this requirement. However, a close interpretation of the
relevant provisions of the Convention, particularly, taking into consideration the drafting
history clearly supports the conclusion that resorting to the remedy does not require the buyer
to demonstrate that he is not able to obtain equivalent goods from another source before he
can resort to the remedy.

Art. 25 of ULIS precluded the buyer from requiring performance by the seller "if it is in
conformity with usage and reasonably possible for the buyer to purchase goods to replace
those to which the contract relates."[186] An UNCITRAL Special Working Group proposed a
version of what is now Art. 46 which retained the language of Art. 25 of the ULIS.[187]
However, the UNCITRAL Committee rejected this version of the Art. In justifying its
rejection, the Committee noted that "the proposal, if accepted, would unjustifiably restrict the
rights of the buyer to require performance of the contract".[188] Again, in response to the 1978
Draft Convention, the United States delegate proposed a new paragraph for what is now Art.
46, by which the buyer could not resort to the remedy where he "can purchase substitute
goods without substantial additional expense or inconvenience".[189] The proposal was repeated
by the same delegate at the 1980 Vienna Diplomatic Conference,[190] but it was also rejected by
the majority.[191] Likewise, the legislative history of Art. 77 of the Convention shows that the
United States delegate made efforts to amend Art. 77 to minimise any claim against the party
in breach if the injured party failed to mitigate damages. The language of the proposal was
broad and would have applied to any form of relief,[192] but that proposal was also defeated.[193]
Relying on the foregoing arguments, as some commentators concluded,[194] it can be said that
Art. 46 does not require the unavailability of substitute purchase as a pre-requisite for
ordering specific performance.

4.6 Rule of Mitigation

As explained above, the remedy of requiring performance is not excluded merely because the
buyer could, acting reasonably, have found a substitute source. However, is there any way to
say that the deficiency arising from the lack of a particular provision restricting the buyer's
right to specific performance to the case of lack of equivalent goods could be compensated by
the principle of mitigation of damages provided by Art. 77? By virtue of this Art., an injured
buyer is required to take reasonable steps to mitigate his losses caused by the seller's default.
This presumably includes the purchase of substitute goods by the buyer. Assuming that the
Art. applies to Art. 46, then it would effectively restrict the buyer's right under Art. 46
whenever substitute goods are reasonably available. In other words, Art. 77 would mean that
the buyer must mitigate loss through the choice of remedy.

However, the language of the Convention on this point is not clear and the commentators
differ. Some of them suggest that the duty to mitigate would be important to prevent injustice
and waste resulting from the exercise of specific performance.[195] In contrast, others, relying on
the drafting history of Art. 77,[196] conclude that an aggrieved buyer's failure to mitigate his
loss is irrelevant when he applies for an order requiring performance in a jurisdiction where
domestic law authorises this broad approach to "requiring performance" under the
Convention.[197]

Nevertheless, it seems that the language of Art. 77, the structure of the Convention and its
drafting history do not support the idea that the mitigation principle is a restriction on the right
to specific performance under the Convention. First, the second sentence of Art. 77 continues
that if the party relying on the breach "fails to take such measures, the party in breach may
claim a reduction in the damages in the amount by which the loss should have been mitigated".
As can be seen, the provision is hardly expressed as a bar to requiring performance. It simply
specifies the consequences for failure to mitigate one's loss: The party in breach may only
claim a reduction in damages.[198] Under this wording, the duty to mitigate only applies when
the injured party claims damages, not when that party resorts to the right to require
performance.[199] Secondly, Art. 77 is placed within a section of the Convention which contains
the rules governing the entitlement to claim "damages". Art. 45, which specifies the remedies
available to a buyer, distinguishes between the rights established in Arts. 46 to 52 and
damages as provided in Arts. 74 to 77. A similar distinction is made by Art. 61 in respect of
the seller's remedies for the buyer's breach. The structure of these remedial provisions
constitutes a significant distinction between the right to require performance and a claim for
damages, including the duty to mitigate in Art. 77.[200] Finally, the drafting history of Art. 77
clearly shows that it does not concern the right to specific performance under Arts. 46 and
62.[201] As indicated above, at the Vienna Conference, several amendments were proposed in
order to impose a duty to mitigate under Arts. 46 and 62 but all of them were defeated. For
instance, the United States delegate proposed to amend Art. 46 so as to restrict the buyer's
right to specific performance if he could "purchase substitute goods without substantial
[unreasonable [202]] additional expense or inconvenience."[203] The proposal was rejected by the
delegates,[204] following a long debate in which several representatives stated that the
amendment would result in depriving the injured party of his contractual right to performance
and would cause great uncertainty in international contracts.[205] After the rejection of the first
amendment proposed by the US delegate, he tried to propose another which provided that a
failure to mitigate would allow the party in breach not only to reduce any damages claim but
also to claim " a corresponding modification or adjustment of any other remedy."[206] This proposal was also decisively rejected by a large majority of the delegates as it restricted the
right to performance by imposing a duty to mitigate.[207] Accordingly, Art. 77, as some
commentators suggest,[208] should not be extended to Art. 46 so as to restrict the buyer's right under Art. 46.[209]

What follows is an attempt to clarify the position of Iranian and Shi'ah law in respect of the
remedy of specific performance, in general, and to determine the circumstances in which the
buyer may be entitled to demand that the seller cure his defective performance.

Nevertheless, a close consideration of the jurists' arguments in favour of the remedy shows
that it has a wide scope and may be invoked in a wide variety of circumstances.[214] Generally, a
buyer may be entitled to invoke the remedy where the seller fails to procure, produce or deliver
the purchased goods or part of them (emtena' an al-taslim) or fails to perform an obligation to
do a positive act such as delivery of goods at a particular port or on a date provided by the
contract, or prepare and hand over the shipping documents, and, all other acts he may
undertake to do or refrain to do under the contract (emtena' an al- wafa'bi al- shart -e-
fe'l).[215]

The fundamental reason for this general rule is the Quranic verse "ufou bel u'qoud"[216] which orders Muslims to fulfil their contracts and a number of rewayat from the Prophet of Islam Muhammad [217] and Imam Ali and other Shi'ahImams to the effect that contractual obligations must be respected unless performance amounts to violation of the Islamic code of conduct (i.e., it is a sin in Islam) or is otherwise against the law.[218]

Nevertheless, the question which remains unanswered is why the Islamic court should be
obliged to interfere in favour of an aggrieved buyer by ordering the defaulting seller to
perform his own part of the contract? And when the court does so, to what extent should it be
required to accept the buyer's application for requiring performance?

In spite of strong support for the first approach on the part of a considerable number of
jurists,[222] it has been criticised by some.[223] According to them, private contracts are the source
of personal rights. Breach of these contracts is a violation of personal rights of the party in
whose favour the obligation is undertaken.[224] It does not involve any of the duties owed by a
man to God. Accordingly, there is no reason to justify the court's intervention. An aggrieved
party, according to this approach, is left to the remedy of termination. However, the remedy of
requiring performance is available in circumstances where breach of contract amounts to
violation of not only the personal rights of the promisee but also the rights of the community,
or obligations owed to God.[225] If a breach of contractual obligations of such a nature is
committed an Islamic judge would be obliged to prohibit any breach of such a contract
because this type of breach is more than a simple violation of the rights of a contracting
party.[226] Although this approach has been taken by some jurists in the case of breach of shart -e- fe'l, it is, as the late Naeini, observed,[227] a general argument applicable to all contractual
obligations under private contracts.

3.3 Suggested Approach

It is hard to accept the argument that the authorities such as the Quranic verse ufou bel
u'qoud and the rewayat such as al- Mu'menoun endashuroutehem are intended to impose on
the parties to private contracts, in particular, to commercial contracts, a purely religious duty
(taklif share'i mahd) to fulfil the contract, breach of which will amount to breach of a
religious decree so that the party in breach will be regarded as guilty of violation of a duty
owed by a man to God. Likewise, the second approach is unacceptable in its entirety, since
termination is not always an adequate remedy. It is a not infrequent circumstance that the
seller is a unique supplier, or is the only supplier able to procure and deliver the goods within
the required time. The buyer sometimes requires the purchased goods for his business
activities and is not able to procure them within the required time from another source.
Accordingly, leaving the buyer to his remedy to terminate will sometimes cause him
unreasonable harm.

It seems that the language of authorities such as the Quranic verse and rewayat already
referred to is nothing but to confirm that contractual expectations must be respected if the
contract is concluded according to the Islamic law-maker's requirements. By this recognition,
the Islamic law-maker does in fact accept a validly concluded contract as a source of personal
rights which entitles each party to demand that the other give effect to what he has
undertaken.[228] It also follows that where one of the contracting parties has not received what
he was entitled to obtain under the contract he should be compensated adequately.
Accordingly, breach of contract will not always amount to violation of Islamic law in the strict
sense that obliges the Islamic judge to interfere in order to protect the Islamic faith against
violation. But since all contractual rights have been recognised by the Islamic law-maker, any
breach of contract will result in violation of Islamic law in the sense of the necessity of
respecting the contractual expectations. Hence, the court's interference is in order to protect a
party who is aggrieved by the other party's violation.

On this interpretation, requiring performance will be one of the ways to compensate the
aggrieved party but not the only way. It is left to the aggrieved party to elect his proper
remedy. However, the buyer's option to elect between remedies is subject to the principle of la
darar. Under this principle,[229] no detrimental religious rule is passed by the Islamic law-maker. Accordingly, if requiring performance will cause the party in breach loss greater than
that inflicted on the victim of breach it will be a detrimental decree which is unenforceable
under this principle. The Islamic order to respect contractual obligations does not mean that
they must be performed under any circumstance but that contractual rights must be respected
and a proper remedy should follow any breach. However, exercise of any particular remedy is
subject to the restriction that it does not violate the cardinal principle of la darar.[230]

One of the natural consequence of the suggested approach is that the aggrieved buyer's right
to demand specific performance is not an absolute right but is subject to the rights and
interests of the seller in breach. Accordingly, if insisting on specific performance is
unreasonable in the sense that it inflicts a greater loss on the seller in breach than the loss
suffered by the buyer for non-performance, the cardinal principle of la darar comes into
operation in favour of the seller in breach and, consequently, the buyer is left to other
remedies. Accordingly, it seems to the writer that the remedy of specific performance has, in
general, no priority over the remedy of termination but it is one of the remedies available for
an aggrieved party. It may be resorted to in any case in which it does not cause the breaching
party an unreasonable loss or inconvenience.

3.4 Different Consequences of the Three Approaches

Although no jurist has addressed, adoption of any one of the above-mentioned approaches
produces different consequences. According to the first approach, in any case in which the
seller fails to fulfil one of his contractual obligations the court has to give effect to the buyer's
application for specific performance. The court has no power to refuse to accept the buyer's
application and request him to terminate the contract and accept damages in lieu. An order
requiring the seller to supply and deliver the subject of sale will be granted, so long as the
compulsion of the seller to perform is possible. No matter whether or not the costs exceed
considerably the contract price, or the buyer is able easily to obtain the goods from another
source. Under this view, the court, in fact, protects Islamic laws against the seller's violation
and thus is not allowed to ignore the infringement of Islamic instructions merely because of
the increase of expense of supply of the goods.

In contrast, according to the second approach, the court is not given any power to interfere.
The buyer is left to his remedy of termination. The only case in which he can apply for the
court's aid is where the property in the purchased goods has passed to him. In such a
situation, he can apply to the court for an order requiring the refusing seller to deliver the
goods. However, the court's intervention is not justified on the basis of the buyer's right to
require specific performance, but it is justified on account of ghasb; the seller is obliged to
deliver the property to its real owner.

According to the writer's suggested view, the court is bound to interfere in favour of the
personal rights of a buyer who is aggrieved by the seller's violation. However, its interference
is subject to the principle of ladarar. The court will give effect to the buyer's application for
specific performance provided that it does not inflict on the seller loss greater than that the
buyer may sustain for non-performance.[231]

The buyer may also be entitled to request the seller to deliver substitute goods where the seller
delivers the wrong quantity, or where some of the goods are not in accordance with the
contract conditions. Accordingly, in a severable contract the buyer may be entitled to accept
the conforming and reject the non-conforming part and request the seller to deliver instead of it
conforming goods.

However, the position of the buyer's right to demand cure where the seller of specific goods
fails to deliver conforming goods does not seem so clear. It might be argued that the buyer has
no right to demand that the seller do so. Any request by the buyer in such cases can be rejected
by the seller. The view can be explained on the basis that the subject of the seller's obligation
is to deliver the specific goods which were supposed to possess particular characteristics.
After the seller has delivered them to the buyer his obligation to deliver has been performed.
No other contractual obligation under the contract remains to be fulfilled by the seller. The
duty to remove the defect by repair or to take back the non-conforming and deliver substitute
goods is an extra duty which cannot be inferred from the contract unless the parties have
agreed expressly on such a right for the buyer. However, wherever the non-conformity causes
the imposition of an undue detriment on the buyer he is entitled to reject them and terminate
the contract, as described in the previous section.

This argument cannot be accepted in its entirety. It is true that in a contract for sale of specific
goods the seller will not be under any duty to do a positive act in favour of the buyer when he
has delivered the subject of sale to the buyer. However, in such a case, in particular, in the
case where the seller has manufactured an item and sold it to the buyer according to his order,
the seller gives a promise that he will produce and deliver goods conforming to the conditions
on which they made their contract.[234] If it is proved that the goods do not correspond with the
requirements provided under the contract the seller has in fact failed to perform his obligation
to produce an item conforming to the contract requirements. Accordingly, he is required to
perform his obligation under the principle of ufou bel u'qoud if he is able to repair the defects
or put the item into operation by changing some part of it. However, the buyer cannot demand
that the seller take back the defective goods and deliver substitute goods, since the seller's
duties were only concerned with the specific goods and he has not undertaken any obligation
as to the delivery of replacement goods.

If the first approach is adopted the buyer's entitlement to this remedy is subject to the
practicality of requiring the defaulting seller to perform his obligations,[235] whereas according
to the suggested approach, the court will give effect to the buyer's application where it does
not cause the seller an unreasonable expense or unreasonable inconvenience.[236] Where the
buyer, without any unreasonable expense or unreasonable inconvenience, could procure the
goods from another source, repair them himself or have them repaired by others he should not
be entitled to demand cure. It is to be stressed that under the suggested approach it is the seller
in breach who has to satisfy the court that specific performance would place him in a difficult
position and impose on him hardship not the buyer who is given a right to have in specie what
the seller has promised under the contract.

It is also suggested that the distinction made by the Convention (Art. 46(2) (3)) between the
right to demand replacement goods and cure by repair is an appropriate rule. Thus, in the first
case, he should be given such a right, as in the case of the right to terminate, only where the
lack of conformity results in sufficiently serious consequences, having regard to the
circumstances of the particular case, including the seller's offer to repair. The buyer should
not be given a right to demand replacement goods for minor defects. This suggestion, not only
is in line with the principle of la darar, but also would bring the remedy of demanding
delivery of substitute goods close to that of termination. In practice, the former remedy would
place the seller in more difficult situation in which termination will put him; the seller must
take back the non-conforming goods and make a fresh tender. But in the second case, the
buyer is entitled to demand repair of defects unless it is unreasonable having regard to all the
circumstances.

As far as the remedy of specific performance is concerned, the Convention substantially
differs from English law. First, unlike English law, the Convention gives the buyer a general
right to require the seller to perform what he has undertaken under the contract (Art. 46).
Second, in contrast to English law, specific performance under the Convention has been
treated as a right (Art. 45(1). Accordingly, where the buyer applies for it the court is bound to
give a judgement ordering the seller to perform his obligation where the requisite requirements
are satisfied (although Art. 28 of the Convention gives the national courts a discretion to
depart from the Convention rules if under their national law they do not grant specific
performance in similar contracts of sale not governed by the Convention). Third, as shown in
light of the legislative history, the buyer, unlike in English law, is not required to show the
court that damages are an inadequate remedy; he need not demonstrate inability to procure the
contract goods elsewhere prior to obtaining specific performance. Likewise, unlike in English
law, in the case of sale of unascertained goods, identification of the goods to the contract is
not treated as a pre-requisite to a claim for the remedy of requiring performance under the
Convention.

The remedy of specific performance under the Convention has a broad scope. The buyer may
be entitled, subject to the restrictions provided by the Convention, to this remedy when the
seller fails to procure or produce the goods or to deliver them, hand over any documents
relating to them at the right place or date fixed in the contract (Arts. 31, 33 and 34). He may
also apply to the court for this remedy where the seller refuses to deliver goods, hand over any
documents relating to them (Art. 30), or where part of the purchased goods are missing or
does not conform to the contract (Art. 51) and do all other acts necessary to fulfil the contract
as originally agreed. Similarly, the Convention gives the buyer the right to apply to the court
to enter a judgement ordering the seller to deliver substitute goods or repair the lack of
conformity in accordance with Art. 46(2) and (3). When applying for replacement goods, what
he is required to prove is that the seller's non-conforming delivery is serious enough to
constitute a 'fundamental breach' (Art. 46(2). In contrast, when he applies for an order
requiring the seller to repair the lack of conformity he should only show that his request is not
unreasonable "having regard to all the circumstances" (Art. 46(3)). Although according to the
wide language of this provision the buyer will have a general right to require the seller to cure
any form of lack of conformity by way of repair, the buyer who contemplates resorting to
these remedies obviously takes the risk that, if the matter comes to litigation, the court may
hold that to require repair is unreasonable or that the lack of conformity is not sufficiently
serious to constitute a fundamental breach. Accordingly, although specific performance under
the Convention may be regarded as the logically prior remedy, in practice the buyer would
likely prefer the certainty and simplicity of damages, unless repair or replacement is very
difficult for the buyer to obtain otherwise.

In comparing Iranian-Shi'ah law with the two other systems, it seems that this system has
close similarities to the Convention. As already seen, requiring the defaulting seller to perform
his contractual obligations is a well-settled remedy under Iranian Civil Code and amongst
Shi'ah jurists.

As in the Convention, in Iranian-Shi'ah law Iranian Civil Code and almost all jurists have
recognised specific performance as a legal remedy. As shown before, apart from a few jurists
who disagreed with giving the buyer a broad right to apply for specific performance, most of
them hold that in any case in which the seller fails to fulfil one of his contractual obligations
the buyer has a right to apply to the court for specific performance and the court is bound to
give effect to his application. Under this interpretation, the court has no power to refuse to
accept the buyer's application for specific performance and request him to terminate the
contract and/or accept damages in lieu. Under this view, an order requiring the seller to supply
and deliver the subject of sale will be granted unless requiring the seller to perform is
impossible. No matter whether or not the costs considerably exceed the contract price, or
whether or not the buyer is able easily to obtain the goods from another source. Likewise,
although the jurists have not expressly addressed the issue, it seems that their interpretation
does not distinguish between minor and substantial breaches where the buyer rejects the non-conforming goods and demands that the seller deliver conforming replacement. The buyer may
be entitled, under this view, to demand that the seller deliver replacement goods even if the
seller's non-conforming delivery does not amount to a substantial breach. According to this
view, the court, in fact, protects religious rules against the seller's violation and thus is not
allowed to ignore the infringement of Islamic instructions merely because supply of the goods
would considerably exceed the contract price.

On this interpretation, specific performance is a broad remedy and may cover cases where the
buyer is not entitled to obtain it under the Convention. Under this approach, as long as the
seller can be compelled to perform, the court has to give effect to the buyer's application.
Since Iranian Civil Code as well as the jurists have not ascertained the degree of impossibility
of performance, one may conclude that the court, according to them, should give effect to the
buyer's application unless the performance of the contract becomes impossible. Moreover,
this view seems to suggest that the buyer may be entitled to apply for specific performance for
any lack of conformity. Whereas, under the Convention, in giving effect to the buyer's
application for specific performance, the court should look at the circumstances of each case
to ascertain whether or not the buyer's request is reasonable.[240] Likewise, under the
Convention the buyer will not be entitled to demand substitute goods where the lack of
conformity does not result in a fundamental breach of contract.

However, by introducing a new reading of the main authorities relied on for this purpose, it
was suggested that the above interpretation cannot be accepted in its entirety, at least in
Shi'ah law. Under this suggestion, specific performance, contrary to the few jurists who
disagreed with it, should be regarded as a legal remedy in this legal system but not as an
absolute remedy applicable in every circumstance, as most jurists seem to suggest. Likewise,
the remedy of specific performance is not provided in this system only to preserve the pure
religious decrees. It is set forth to protect the aggrieved party's legitimate expectations under
the contract. Accordingly, it is submitted that giving the buyer the right to obtain specific
performance should be assessed according to the degree of losses and hardship caused to any
party by giving or refusing specific performance. Under this suggestion, where insisting on
specific performance is unreasonable in the sense that it inflicts a greater loss on the seller in
breach than the loss suffered by the buyer for non-performance the court should have power to
refuse to accept the buyer's application for performance and leave him to his remedy of
terminating the contract and/or claiming for damages.[241] The suggestion can be supported by
the principle of la darar. The Islamic order to respect contractual obligations does not mean
that they must be performed specifically under any conditions. It is subject to the restriction
that it does not violate the cardinal principle of ladarar. On this interpretation, specific
performance has, in general, no priority over the remedy of termination, as most jurists seem
to suggest, but is one of the remedies available for a buyer who is aggrieved by the seller's
breach. Accordingly, the court in any case should look at all the circumstances, in particular
any hardship which would be caused to both parties by giving or refusing specific
performance, for the purpose of implementation of justice. For this purpose, it is the seller in
breach who has to satisfy the court that specific performance would place him in a difficult
position and impose on him hardship not the buyer who is given a right to have in specie what
the seller has promised under the contract.

Having accepted that the buyer has a right to require the seller to perform what he has
undertaken under the contract, it is suggested that the Convention provisions giving the buyer
a right to require the seller to cure his non-conforming delivery by delivery of substitute goods
and/or repair are consistent with general principles and the authorities authorising the buyer to
obtain specific performance. However, it is suggested that the buyer's right to demand cure
should be analysed on the principle described above. Thus, the buyer's demand to cure by the
seller should not be accepted where it causes the seller unreasonable expense or unreasonable
inconvenience. In such cases, the buyer is to be left to his right to terminate the contract and/or
claim for damages. Similarly, the buyer should not be given a right to demand delivery of
replacement goods where the contract was for sale of specific goods, although he may be
entitled to demand cure by repair. Demanding delivery of substitute goods should be available
only where the contract is for the sale of unascertained goods. Likewise, it was suggested that
in giving the buyer a right to demand cure, a distinction should be made between the right to
demand replacement goods and to demand cure by repair. The right to demand substitute
goods should be given only where the lack of conformity results in sufficiently serious
consequences. But the right to demand cure by repair is to be available unless it is
unreasonable having regard to all the circumstances.

Although on the suggested interpretation the circumstances in which a buyer may be entitled
to apply for specific performance are considerably reduced, there are still important
differences between Shi'ah and English law. Under this suggestion, the buyer is not required,
as he is under English law, to satisfy the court that damages are an inadequate remedy for him
or that the subject of sale is unique which cannot be obtained from another source. What he
has to show is that the seller has failed to perform his obligations under the contract. It is the
seller's duty to show that the contract goods are such that alternatives can be obtained from
another source, and that requiring him to procure and deliver them under the contract would
place him in a position worse than the buyer would be placed if specific performance is not
granted. Likewise, unlike in English law, in Shi'ah law where the criterion, as described
above, is met the court has no discretion; it has to enter a judgement for specific performance.

Similarly, although this suggestion, as described above, shows a close similarity to the
Convention in a number of aspects, it seems that they differ in that, while under the
Convention delivery of substitute goods will be available for the buyer only where the lack of
conformity constitutes a fundamental breach of contract, under Shi'ah law the buyer may be
given a right to demand replacement goods where the lack of conformity is, as in the case of
termination,[242] such that it is not customarily unreasonable for him having regard to all the
circumstances including the possibility of repair by the seller.

A particular method is used in this work in referring to the materials used throughout the
thesis. To make small the volume of footnotes and to ease for reader to trace the full address
of the references used, in any case the second name of the author(s), year of publication(s)
and number of volume, if any, is mentioned. Full address of the references used in the text
can be easily found in the following bibliography set out chapter by chapter.

Honnold, J.: Documentary History of the Uniform Law for International Sales, (Kluwer Law
and Taxation Publishers, Deventer/Netherlands, 1989).
Official Records, The.: United Nations, UN Conference on Contracts for the International
sale of Goods Vienna, 10 March-11 April 1980 (Official Records), (United Nations,
New York, 1981).
Secretariat Commentary, The.: United Nations Secretariat, Commentary on the Draft
Convention on Contracts for the International Sale of Goods, Prepared by the
Secretariat, (Document A/Conf. 97/5, 1979, reprinted in the Official Records (1981)
at 14-66.
United Nations Commission on International Trade Law (UNCITRAL): Yearbook, Vol. VIII
(1977), (United Nations, New York, 1978.

4. IRANIAN AND SHI'AH LAW

N.B.

H.Q. is used to refer to Hejri Qamari (Lunar Calendar) and H.S. is used to refer to Hejri
Shamsi (Solar Calendar).